The following Private Client practice note Produced in partnership with Alex Ruck Keene of 39 Essex Street Chambers provides comprehensive and up to date legal information covering:
Note that this Practice Note does not address specific practice alterations caused by the COVID-19 pandemic. These are addressed in Practice Note: Coronavirus (COVID-19)—Court of Protection and mental capacity.
The Court of Protection has the power to make a decision or decisions as to the personal welfare of a person lacking the capacity (P) to take the decision(s) for themselves. The Court of Protection also has the power to appoint a deputy to make the decision(s) (see Practice Note: Choosing the deputy for further details), although health and welfare deputies are only relatively rarely appointed for the reasons developed by the Vice-President of the Court of Protection, Hayden J, in Re Lawson, Mottram and Hopton (appointment of personal welfare deputies). For analysis of this case, see News Analysis: Principles governing the appointment of personal welfare deputies (Re Lawson; Re Mottram; Re Hopton).
Alongside the powers set out above, the Court of Protection also has the power to make a declaration as to the lawfulness or otherwise of any act done or yet to be done in relation to a person lacking capacity to make the relevant decision(s). For these purposes, an 'act’ includes an omission and a course of conduct.
As a very general rule, questions relating to health matters are more usually raised by way of applications for declarations rather
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